1. This second appeal arises out of a suit instituted by the appellant for recovery of Rs. 1,750 deposited by one Pandurang with whom she lived as his mistress on the basis of Pandurang's will dated 4th September 1915. The suit having been dismissed in the two Courts below, the plaintiff has preferred this appeal. It appears that Pandurang recovered from very serious illness in the year 1915 and out of consideration for the tender services rendered by Mt. Rangoo, the appellant, he executed a will on 4th September 1915 in favour of Mt. Rangoo. The terms of this will form the subject of controversy in this suit. The trial Court construed the will as being operative only as a gift. The lower appellate Court was of the opinion that the terms of the document indicate that it was to operate as a will and not as a gift; but as no specific mention of the amount deposited with Harisa, defendant 1, was made in the will which was executed nearly 13 years before the deposit was made, it held that the plaintiff, although a legatee under the will, was not entitled to the amount. Perusing the recitals of Ex. P-1, which is styled as a will, I have very little doubt that it was not intended to be anything but a will. Principles of interpretation of testamentary documents, as in the case of others, are well settled. They were laid down with great clearness in Roddy v. Fitzgerald(1) at 876, which were followed by their Lordships of the Privy Council in Venkatadri Appa Rao v. Parthasarathi Appa Rao(2) at 641 (of 48 M.L.J) They are as follows:
“These rules are perfectly plain and clear. The first duty of the Court expounding the will is to ascertain what is the meaning of the words used by the testator. It is very often said that the intention of the testator is to be the guide, but that expression is capable of being misunderstood, and may lead to a speculation as to what the testator may be supposed to have intended to write, whereas the only and proper inquiry is, what is the meaning of that which he has actually written. That which he has written is to be construed by every part being taken into consideration according to its grammatical construction and the ordinary acceptation of the words used, with the assistance of such parol evidence of the surrounding circumstances as is admissible to place the Court in the position of the testator.”
2. It is urged for the respondents on the strength of Rambhat v. Lakshman Chintaman(3), Tirugnapal v. Ponnammal Nadathi(4), Muhammad Abdul Chani v. Fakhr Jahan Begam(5) and Brijraj Singh v. Sheodan Singh(6), that the mere name or title of the document is not a safe guide to the determination of the character of the writing.
3. It may be conceded that it is so, but the title as has been given by the executant himself to his writing cannot be eliminated from consideration. The appropriate method of construing such documents is the one indicated by their Lordships of the Privy Council in the aforementioned case. In the document in question the executant mentions that he was 58 years old and that he has passed through serious, illnesses and that Mt. Rangoo who had been Jiving with him for 35 years had rendered him great service especially during the time of his last illness. These expressions considered along with the fact that the testator being a mukhtiar, that is a Court going agent, and conversant with legal affairs, impart to the title given by him to the document particular significance. Much stress is laid on such recitals as the words “dile ahe” which mean “it is given” and it is contended that the executant of this document intended to make a gift and not a will. The words of donation used are not necessarily inconsistent with the document being a will. Whether the gift was to operate in praesenti, or in futuro has to be gathered from the other recitals in the document. Having regard to the repetition of the word Mrityupatra four times in the document in connexion with the gift, there can be no room for contention that the gift was to be operative after the death of the executant. In Zuglai v. Ratan, A.I.R 1924 Nag. 236 the words used were much stronger, namely, ‘lagalich dili,’ meaning immediately given, but it was held considering the drift of the document as a whole that expression did not imply gift in praesenti; but that it was intended to mean that the property was to go to the donee. I have therefore no hesitation in agreeing with the lower appellate Court that the document which bears the title of a will was intended to be in reality a will and not a gift-deed.
4. The next question is as regards the property which was disposed of by the will. The property is described in one place as the moveables in his possession, that is pots, etc., as well as gold articles, and in another place it is declared that the property was the testator's self-acquired property and that he made Mt. Rangoo owner of it. The generic word used is ‘jingi’ with reference to his moveable property. There is absolutely no mention of any immovable property. It is therefore evident that the testator desired to make Mt. Rangoo the owner of all his moveable property, which he described as his self-acquired property. On the other hand, it is expressly mentioned that his mother and brothers did not prove useful to him and that therefore he made a gift of all his property exclusively to Mt. Rangoo. The intention clearly expressed is that Mt. Rangoo was to take the property to the exclusion of the testator's own relatives.
5. The next question is whether the sum of Rs. 1,750 which he deposited on 7th March 1928 with Harisa, defendant 1, should be considered to have been covered by the will. Evidence is not clear as to whether the testator possessed any cash on the day of the will, but even on the assumption that he did not, I do not see any reason why the will should not operate on the deposit. In Bodi v. Venkataswami Naidu(7) it was held that a will has the same effect as if it were executed at the time of the testator's death. It must therefore follow that it would take effect with respect to the property existing at the testator's death. Mere lapse of time and change of circumstances will by themselves not operate to revoke a will: see Subba Reddi v. Doraisami Bathen(8). Section 90 of the Succession Act expressly provides that the description contained in a will of property, the subject of gift, shall, unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator. This is in accordance with the rule of English law embodied in the Wills Act of 1837, under which the will has to be construed with reference to the real estate and personal estate comprised in it to speak and to take effect, as if it had been executed immediately before the death of the testator, and as if the condition of things to which it refers in this respect before the death of the testator unless contrary intention appears by the will: see 28 Halsbury's Law of England, para. 1311. In the same paragraph it also stated the rule that no contrary intention is shown by the mere use of a possessive adjective in the case of such a generic gift: nor by a description of the property as being that of which the testator is seized or possessed. A description of the property as that which the testator “now” owns or occupies, according to the circumstances may, but, it appears prima facie does not, show such a contrary intention as to exclude after acquired property of the specified nature. Applying this principle of construction to such expressions as mazamhanoon aslela and jingi paiki maze jawal occurring in the will, would not be restricted to the property which the testator owned at the time of the will, but would be extended to include property which he left at his death. This was the view taken in A. Gramani v. Danakoti Ammal, A.I.R 1927 Mad. 383 in dealing with an identical question. In this case their Lordships of the Madras High Court pertinently observed as follows:
“Although it is true that there are no express words indicating that the testator intended to provide for subsequent acquisitions, it is equally true that the will contains nothing to show that he wished to exclude them from its operation.”
6. Unless there are expressions in the will to indicate a contrary intention it must be presumed that the testator intended to dispose of all his property answering the description of moveable property (jangam mal) existing at his death.
7. For the forgoing reasons I hold that the amount deposited, which is the subject-matter of the suit, falls within the purview of the will and that Mt. Rangoo being the sole legatee is entitled to it. The result is that the appeal succeeds, the lower appellate Court's decree is set aside and the plaintiff's suit is decreed with costs in all the Courts.
K.N/R.K
8. Appeal allowed.